Terms & Conditions

for the Provision of Software (“Charles Service”)

version dated May 30, 2025

Preamble

These Terms and Conditions (the “Terms”) are part of the Agreement between Charles GmbH, Gartenstraße 86-87, 10115 Berlin (“Charles”) and its Client as specified in the Commercial Agreement ("Client").

1. Scope and Applicability

1.1 Charles Service and Charles AI Services. These Terms apply to the Charles Service and the Charles AI Services as specified in the Commercial Agreement between Charles and the Client. These terms particularly apply to the provision of an interface to send and receive messages from end customers, end users, clients, partners, or any other individuals or entities (collectively referred to as “Contacts”), the required computing power and the necessary storage space for data.

1.2 Charles Professional Services. These terms do not apply to any services that Charles provides to the Client outside of the Charles Service – in particular services as agreed upon per separate Professional Services Agreement (“Charles Professional Services”). For all Charles Professional Services, the Charles Professional Service Terms apply (“Professional Service Terms”).

1.3 Applicability. By signing the Commercial Agreement or by using the Charles Service, the Client accepts these Terms.

2. Admission and Access to the Charles Service

2.1 Admission and Access. Admission to the Charles Service is granted by Charles on an Authorized User basis. Upon admission, Client receives a master login to configure access for individual Authorized Users. Each Authorized User must have a unique login, accept the Acceptable Use Policy for the Provision of Software (“AUP”) and acknowledge Charles’ Privacy Policy. Charles assumes no liability for any loss or damage resulting from failure to secure login information.

2.2 Withdrawal of Access. Charles may withdraw a Client’s admission or block Authorized Users (i) if there is reasonable suspicion of a violation of any provision of the Agreement; (ii) if the Charles Service is terminated; (iii) if fees remain unpaid for 14 days after fruitless expiration of a deadline; (iv) if required by law or an order of a competent authority applicable to Charles or its Subprocessors; (v) if suspension is needed for maintenance or upgrades (with reasonable notice whenever possible); (vi) if a Selected Messaging Channel suspends its services; (vii) if Client or its Authorized Users operate in a country sanctioned or targeted with a trade embargo by competent bodies of the EU, an EU member state or the US; or (viii) if WhatsApp or Meta suspend Client’s Business Account.

3. Client obligations

3.1 Technical obligations. The Client shall ensure and maintain, at its own cost, proper technical infrastructure to access and use the Charles Service, including a stable internet connection and compatible systems. The Client is responsible for onboarding, configuration, and timely participation in onboarding sessions if offered. Charles offers ticket-based technical support and in-tool live chats to the Client from 9am until 6pm CET on weekdays (excluding weekends and Berlin bank holidays).

3.2 Compliance. The Client must use the Charles Service in accordance with all applicable laws. In particular, the Client shall ensure compliance with all applicable Data Protection Laws and shall be responsible for obtaining proper consent from its Contacts.

4. Third-Party Services

4.1 Third-party services. Client acknowledges that the Charles Service depends on Third-Party-Services (including but not limited to WhatsApp for Business and Meta) whose functions are outside of Charles’ control (“Third-Party-Service”). Changes to any Third-Party-Service, including modifications, suspensions, or terminations may limit, temporarily suspend or end the Client’s use of the Charles Service without liability for Charles. The Client shall notify Charles of any developments of Third-Party-Services that may affect the use of the Charles Service in this regard.

4.2 Business Accounts, WhatsApp and Meta Terms. The Client shall only use the Charles Service if the Client creates and maintains the required Third-Party-Service business accounts. Charles has no control over Meta’s pricing, features, or policies. The Client shall only use the Charles Service in line with all applicable third-party terms, in particular but not limited to the WhatsApp Business Messaging Policy (available at https://business.whatsapp.com/policy) and all related terms and policies and all applicable Meta policies (available at https://transparency.meta.com/policies/).

4.3 Third-Party-Services and Content. Charles is not liable for the functionality, availability, performance, or security of Third-Party-Services used by Client. Any resulting errors or issues are the Client’s sole responsibility. Client shall indemnify and hold harmless Charles against all claims, fines, or fees in this regard.

5. Pricing, Fees, Payment and Billing

5.1 Pricing and Fee Details. Charles may change the Pricing and Fee Details at its own discretion within reasonable limits. Charles will inform the Client about any material changes to its Pricing and Fee Details without undue delay. More information on Pricing Definitions can be found under https://www.hello-charles.com/pricing_definitions.

5.2 Payment of Fees. All fees, and other payment details are specified in the Commercial Agreement. Client is responsible for all transactional costs, including but not limited to taxes, tariffs, customs, credit card and foreign currency transaction fees.

5.3 Billing. Charles shall generally issue an electronic invoice to Client annually in advance. Any objections to an invoice must be submitted in text form within four (4) weeks, or this invoice shall be deemed approved.

5.4 Late Payment. If fees are overdue, Charles may charge interest at nine (9) percentage points above the German base interest rate. If fees remain unpaid for 14 days after fruitless expiration of a deadline, Charles may suspend Client’s access to the Charles Service (see Clause 2.2 above). Suspension does not waive the payment obligation, and access will only be restored once outstanding fees are settled.

6. License Rights and Ownership

6.1 License and Charles Service Ownership. Charles grants Client a non-exclusive, geographically unrestricted, non-sublicensable, and non-transferable right to use the Charles Service for the Subscription Period as specified in the Commercial Agreement. All other rights, including ownership of the Charles Service, its software, technology, data, documentation, and derivative works, remain solely with Charles. Third-party software integrated into the Charles Service remains the property of its respective provider. All rights not expressly granted to Client, including those to the software, documentation, and materials, remain reserved by Charles.

6.2 Client Ownership. Client warrants that it owns (or has the legal right to own): (i) its own confidential and non-confidential company data, Authorized User data and Contact data to the extent permitted by applicable law (the “Client Data”); and (ii) subject to the rights of applicable open source software licensors, any other Company Content including custom content and code developed solely by Client (and/or its Authorized Users), without any contribution from Charles, excluding any derivative works of Charles' intellectual property rights and Confidential Information. Client grants Charles a fully paid-up, royalty-free, worldwide, non-exclusive, perpetual license to use, reproduce, process, and transmit Client Data and Company Content as necessary to provide the Charles Service and related services to Client and its Authorized Users, as permitted under the Terms. This includes the use of aggregated or anonymized Client Data and Company Content to analyze Charles Service usage, optimize features, and improve Support and Success Services.

6.3 Upgrades. Any new versions, updates, upgrades, or other modifications to the Charles Service provided during the Subscription Term are subject to the same rights and restrictions outlined in the Agreement.

6.4 No Transfer of Service. Client receives access to the Charles Service but does not acquire ownership or any physical or actual transfer of the Charles Service or its software components.

6.5 License Limitations. Client has no rights beyond those expressly granted in these Terms. Client may not use the Charles Service for any purpose outside the agreed scope, including developing own services or services for Third Parties or to make the Service accessible to Third Parties. Client may not activate or use functionalities not granted under the Commercial Agreement. Client is strictly prohibited from duplicating, selling, renting, leasing, lending, distributing, or otherwise making the Charles Service available to Third Parties, whether online or through private or public networks. Client may not modify, translate, copy, decompile, or reverse-engineer the Charles Service’s source code unless explicitly permitted by law. Client shall respect Charles’s intellectual property rights, including logos, trademarks, copyrights and other rights.

6.6 Open-Source Components. The Charles Service includes open-source software components, which are listed on a dedicated information page within the Charles Service, where required by applicable open-source license obligations.

7. Data Protection

7.1 Responsibility of Charles and the Client. Charles shall process Client Data in accordance with data protection laws and regulations applicable in the European Union (EU) and, where applicable, United Kingdom (UK) (jointly the “Data Protection Laws”) and the instructions of the Client in line with this DPA. The Client remains solely responsible for the lawfulness of the processing of Client Data to the extent that the Client determines the details of Client Data processing within the Charles Service. In particular, the Client shall ensure that it has a valid legal basis for all processing it initiates, including obtaining all necessary consents from Data Subjects, where required under applicable Data Protection Laws. For all Client Data processed in the context of the Charles Service, the Client remains the Controller and Charles remains the Processor. Charles and the Client have entered into a Data Processing Addendum governing the processing of all Client Data.

7.2 Log Files. Charles reserves the right to create, retain and analyse log files in line with applicable data protection laws and regulations to identify any misuse by the Client, its Authorized Users and/or third parties with access to the Charles Service. The Client may retain these logs after the end of the Subscription, insofar as necessary and appropriate for legitimate IT security needs and compliance with applicable laws.

8.Warranty

8.1 Warranty. Charles warrants the Charles Service and related fee-based services will substantially function as agreed. Liability without fault under Section 536a (1) German Civil Code (BGB) is excluded, as is the right to self-remedy under Section 536a (2) BGB. No warranty applies to minor deviations from agreed quality or insignificant impairments, misuse or incorrect operation, incompatibility with Client’s hardware or software, Third-Party-Services affecting Charles Service performance, or failure to report defects without undue delay. Charles may remedy defects at its discretion within a reasonable time, including through updates, and Client shall collaborate as necessary.

8.2 Fee Reduction. If defect remediation is impossible, unreasonably delayed, refused, or otherwise unreasonable for Charles, Client may reduce the fee proportionally to the impairment. Client may not deduct the reduction unilaterally but retains the right to reclaim overpaid amounts under unjust enrichment law.

8.3 Continuation of Payment and Services. Payment is owed during the Subscription Period. If termination is due to Client’s fault, Client shall continue paying fees minus expenses saved by Charles until the earliest possible ordinary termination date. For ordinary termination, the Charles Service Subscription ends on the last day of the then-current Subscription Period. For termination for cause, Client access ends when Charles suspends it in accordance with the Terms.

9. Liability of Charles

9.1 Liability. Charles is liable only for intent or gross negligence, injury to life, body, or health, product liability law violations (Produkthaftungsgesetz). For negligent breaches of fundamental obligations, whose fulfillment is essential for the proper execution of the Agreement (Kardinalpflichten), liability is limited to foreseeable typical damages.

9.2 Exclusions. Any further liability is excluded. In any case, liability is excluded for indirect damages, including but not limited to loss of profit, revenue, savings, business opportunities, or goodwill. Liability is also excluded for loss of Client Data due to inadequate backups, Third-Party-Service failures, and any other damages beyond those expressly stated.

9.3 Force Majeure, Infrastructure Disruption. Charles is not liable for any failure or unavailability of the Charles Service due to force majeure, including strikes, internet disruptions, or natural disasters. Charles does not warrant uninterrupted availability and is not responsible for Client or Contact IT system failures.

9.4 Third-Party Databases and Services. If the Charles Service links to third-party databases, websites, or services, Charles is not liable for their availability, security, or content, including legality, accuracy, completeness, or timeliness.

9.5 Extended Application. This Section 9 also applies mutatis mutandis to Charles’s legal representatives, employees, vicarious agents and subcontractors, including selected messaging channel providers.

10. Transfer of Rights and Offsetting of Claims

10.1 No Transfer Rights. Client may only transfer rights under the Agreement upon Charles Service Provider`s prior consent in text form. Charles may entrust third parties with the fulfilment of the obligations arising from these Terms and Conditions.

10.2 Offsetting of Claims. Any statutory landlord’s lien on Client Data under Sections 562, 578 BGB is excluded. Client may offset claims only if undisputed or legally enforceable. Client may only assert this right of retention if his counterclaim is based on the same contractual relationship.

11. Confidentiality

11.1 Scope of Confidentiality. Charles and the Client undertake to keep Confidential Information of the other Party strictly confidential and to protect it by taking appropriate technical and organizational precautions. "Confidential Information" includes, but is not limited to, the following types of information and other information of a similar nature not publicly disclosed by the owning party:

(a) Business Information: Business plans, strategies, forecasts, projects, and analyses; sales and marketing plans, including, but not limited to customer lists, supplier lists, and related non-public information as well as features and concepts of the Charles Service.

(b) Financial Information: Financial statements, budgets, projections, and other financial data that have not been disclosed publicly.

(c) Technical Information: Proprietary technology, research and development information, product designs, engineering details, specifications, manuals, blueprints, software (including source codes, documentation, and development plans of the Charles Service and all its features including those from beta testing phases), and innovations.

(d) Intellectual Property: Information on patents, copyrights, trademarks, trade secrets, license agreements, and other intellectual property

(e) Operational Information: Processes, procedures, formulas, methodologies, and secrets that are integral to the operational efficiency of the Party.

(f) Legal Information: Settlements, legal communications, litigation strategies, and the existence and terms of agreements and Agreements that are not public.

(g) Charles Service Accounts and Credentials: Accounts of Authorized Users on the Charles Service including related individual credentials (i.e., access codes, passwords and similar type of credentials).

(h) Templates and Best Practices: Templates and Best Practices or similar documented insights shared by the Charles to enable the Client to successfully use the Charles Service towards Contacts, if not shared publicly on the Charles’s website.

This obligation shall continue to apply for a period of 10 years after the end of the Agreement. In addition, the provisions of a separately concluded Non-Disclosure Agreement (NDA) shall continue to apply, unless the provisions contained in these Terms & Conditions are more extensive or more specific.

11.2 Exclusions.  Confidentiality does not apply to information (a) already known to the recipient before the Agreement has been concluded or legally obtained from a third party without breaching confidentiality obligations; (b) independently developed by the recipient without using the other Party’s Confidential Information; (c) publicly available at the time of Agreement or later made public without breaching this Agreement; or (d) disclosed with prior written approval or required by law, court order, or regulatory authority.

11.3 Handling Confidential Information. Confidential Information shall only be shared with consultants bound by professional secrecy or equivalent confidentiality obligations, or with prior written consent of the other Party. Disclosure to employees and agents is limited to those with a strict need-to-know for Agreement execution, and they must maintain confidentiality even after departure. Client shall ensure Authorized Users do not share Charles Service account data or credentials with any Third Party, including but not limited to competitors in conversational commerce, WhatsApp, or similar online messaging marketing, or otherwise give them access to the Charles Service.

11.4 Public Declarations. Public declarations of a Party about the contractual relationship or cooperation may only be made in mutual agreement after prior consultation of the other Party.

12. Final Provisions

12.1 Changes to the Terms. Charles may change these Terms at any time at its sole discretion by notifying the Client about the changes one month before the changes take effect. If Client does not object within fifteen days of receipt of the notification, the changes are deemed accepted. Charles has no obligation to notify and the Client has no right to object i) if changes are legally required by a change in the law or imposed by Third-Party-Services (e.g. WhatsApp or Meta) or ii) in case of non-material adjustments and minor changes not affecting the Client’s use of the Charles Service.

12.2 Entire Agreement. Deviating provisions to these Terms apply only if individually agreed upon in written form by Charles and the Client. Any of the Client’s terms or policies are expressly rejected unless accepted in written form by Charles’s managing directors and in case they do not conflict with the Terms. Any counter-confirmations referencing Client’s terms are expressly rejected.

12.3 Governing Law and Jurisdiction. The Agreement is governed by the laws of the Federal Republic of Germany, excluding its conflict of law rules and the UN Sales Convention. Exclusive jurisdiction lies with the courts of Berlin.

12.4 Severability. If any provision is or becomes invalid or unenforceable, the remaining provisions remain unaffected. Any invalid or missing provision shall be replaced by a valid one that best reflects the intended purpose. Section 139 BGB shall not apply.